State Records Committee Appeal Decision 2011-03

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

NATE CARLISLE, SALT LAKE TRIBUNE, Petitioner, vs.

SALT LAKE CITY POLICE DEPARTMENT, Respondent.
DECISION AND ORDER

Case No. 11-03

By this appeal, Petitioner, Nate Carlisle, reporter for the Salt Lake Tribune, seeks access to “all materials,” including video of the confrontation and shooting, police reports, narrative reports, and photographs related to an August 27, 2010 shooting of Brandon Barrett.

FACTS

On or about September 23, 2010, Mr. Carlisle made a records request of Respondent, Salt Lake Police Department (“SLCPD”), pursuant to the Government Records Access and Management Act (“GRAMA”) for the above-referenced records. Mr. Carlisle asked for:

[A]ll materials related to the Aug. 28, 2010, officer-involved shooting in which Brandon Barrett confronted police and was killed, including but not limited to video of the confrontation, police reports, narrative reports and photographs.

In response, SLCPD provided the initial contact report, photographs, and a redacted surveillance video deleting the “death images” showing the actual shooting and death of Mr. Barrett claiming that its release would be an unwarranted invasion of personal privacy. SLCPD also denied Mr. Carlisle’s request for “narrative reports,” indicating that such a request lacked “reasonable specificity” pursuant to Utah Code Ann. § 63G-2-201(7)(b).

Mr. Carlisle appealed the denials to the Salt Lake City Mayor’s Records Appeals Board and on November 5, 2010, the Board denied the appeal. Mr. Carlisle has now filed an appeal with the State Records Committee (“Committee”). The Committee, having reviewed the materials submitted by the parties and having heard oral argument and testimony on February 17, 2011, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See, Utah Code Ann. §§ 63G-2-302, -303, -304 and -305.

2. Every person has the right to inspect a public record free of charge, and the right to take a copy of a public record during normal working hours, subject to Sections, 63G-2-203 and 204. See Utah Code Ann. § 63G-2-201(1)

3. A governmental entity shall provide a person with a certified copy of a record if the person identifies the record with reasonable specificity. See, Utah Code Ann. § 63G-2-201(7)(b).

4. Records containing data on individuals the disclosure of which constitutes a clearly unwarranted invasion of personal privacy are private if properly classified by the governmental entity pursuant to Utah Code Ann. § 63G-2-302(2)(d).

5. At the hearing, SLCPD argued the video footage containing “death images” requested by Mr. Carlisle were private because publication of the shooting death of Mr. Barrett would be a clearly unwarranted invasion of privacy for the family of Mr. Barrett pursuant to Utah Code Ann. § 63G-2-302(2)(d). However, at the hearing the parties agreed to allow Mr. Carlisle within the next 30 days to review the footage for his news story, but disallowing the release of video to maintain the video’s private classification. Based upon this agreement between the parties, Mr. Carlisle withdrew his appeal to the Committee of this issue.

6. SLCPD also argued at the hearing that it denied Mr. Carlisle’s request because his request was not reasonably specific, pursuant to Utah Code Ann. § 63G-2-201(7)(b). SLCPD claimed that his request for “all records” was too broad and could not easily be determined. SLCPD also claimed that it was not in possession of records identified by the term “narrative report” and the records manager who was familiar with the records did not understand which specific records were being sought by Mr. Carlisle. When asked, SLCPD testified that it believed all records responsive to Mr. Carlisle’s request would fill “1 ½ banker’s boxes.”

7. Mr. Carlisle argued that his request was reasonably specific because he referred to a specific incident/event. He also stated that it was impossible for him to know which records to request from SLCPD when he did not know exactly what records were in the possession of SLCPD related to the shooting. Therefore, he made his request for “all materials related to the Aug. 28, 2010, officer-involved shooting” but not limited to “video of the confrontation, police reports, narrative reports and photographs.”

8. After hearing arguments from both parties, the Committee finds that based upon a preponderance of the evidence, SLCPD failed to show that Petitioner’s GRAMA request lacked reasonable specificity. Considering the limited number of documents regarding the officer involved shooting, the Committee finds that the request was specific enough that SLCPD’s records manager should be able to understand which records are being sought and determine what records are responsive to the request.

ORDER

THEREFORE, IT IS ORDERED THAT Petitioner’s appeal is granted and SLCPD shall, within thirty (30) days, provide Petitioner access to records classified as public records regarding the August 27, 2010 shooting, and provide Petitioner with a privilege log of all records classified as “non-public records.”
IT IS FURTHER ORDERED THAT pursuant to the stipulation between the parties, SLCPD shall allow Mr. Carlisle within thirty (30) days of this order, to review the complete security camera footage of the shooting while continuing to maintain the private classification of the “death images.”

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the records committee upon production of the records; or (2) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.